The
City of Fort Lauderdale ("the City") appeals two
orders denying its motions for summary judgment. The City
contends that these are appealable nonfinal orders under
Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi)
because the orders determine, as a matter of law, that the
City is not entitled to sovereign immunity. The City raises
five points on appeal. We affirm in part and dismiss in part,
concluding that some points, which do not involve immunity
from suit as a matter of law, are not reviewable under the
nonfinal appeal rule.

Background

In the
underlying case, five members of the Hinton family ("the
Hintons") are suing the City for actions and omissions
that followed the City's operation of an incinerator
before 1953 at the Lincoln Park Complex.[1] The Hintons
allege the City caused or allowed ash and other contaminants
from the incinerator site to disburse throughout the
neighboring community. The Hintons allege that the hazardous
substances physically injured them and they have lost use of
their property and suffered reduced market value.

The
Lincoln Park Complex and Durrs Neighborhood

The
City-owned Lincoln Park Complex includes three principal
parcels: (1) a parcel which has been the site for a trash
transfer and recycling station since 1997; (2) a parcel which
is currently the site for the City's One Stop Shop for
municipal services, and previously was the site of an
elementary school until 2005; and (3) a grassy field that
includes Lincoln Park. A portion of the first parcel served
as a wastewater treatment plant from the 1920s until 1997,
and another portion of the first parcel was the site for a
municipal waste incinerator from 1936 until 1953 and
thereafter a second wastewater treatment facility from 1971
until 1983. The area that is now a public park in the third
parcel previously held piles of incinerator ash.

As to
the two portions of the first parcel used as a wastewater
treatment plant, the Hintons believe the wastewater treatment
may have created high levels of dioxins that were released
into the air, groundwater, and soil. The original wastewater
treatment plant was demolished in 1997, and the trash
transfer station was constructed in its place. Prior to the
construction of the trash transfer station, the City had
evaluated redevelopment of the incinerator-wastewater
treatment plant site and conducted Phase I and Phase II
environmental testing of the soil and water. Arsenic, barium,
lead, and benzo(a)pyrene were detected in soil samples. The
amounts detected allegedly exceeded some residential
regulatory thresholds. At that time, the City decided not to
redevelop and did not conduct any additional environmental
testing or remediate any contamination.

Several
years later, in 2000, the City discussed potential
construction of the One Stop Shop at the former elementary
school site and ordered Phase II testing for the site. The
Florida Department of Environmental Protection
("FDEP") conducted independent testing at the
Lincoln Park Complex. Sampling occurred between 2002 and
2003, and the park was closed for remediation activity. In
2003, FDEP allowed the construction to proceed, agreeing that
the environmental conditions at the school property should
not affect construction of the One Stop Shop. In 2003, the
City dewatered the site to install utilities for the One Stop
Shop, and contaminated ground water flooded the neighborhood.
During a partial remediation and capping of Lincoln Park,
piles of contaminated soil were left uncovered for extended
periods, including when hurricanes struck the area.

The
Hintons complain that the City did not remediate or notify
residents after the 1997 testing revealed contamination. The
park was not fenced until 2002, and the City only posted
"no trespassing" signs. It did not warn of possible
contamination, and children continued to play in the area.
Between 2004 and 2006, FDEP collected soil samples in the
residential neighborhoods. Polycyclic aromatic hydrocarbons
("PAHs") exceeding State of Florida Soil Cleanup
Target Levels ("SCTLs") were detected on one of the
Hintons' properties. One sample also showed an arsenic
level above residential regulatory thresholds. Sampling of
other homeowners' lots detected other contaminants.
Residents learned of the contamination from the State around
2005.

After
evaluating soil sample results, the Florida Department of
Health issued a report in 2007 concluding that chronic
exposure to contamination in the surrounding neighborhoods
could create elevated health risks for sensitive
subpopulations, like children with developmental
disabilities. Because contaminants were at higher
concentrations below the surface, there was some indication
that incinerator ash may have been used as fill for
residential properties and digging in subsurface soils could
increase exposure risk. Some contaminants were at
concentrations above SCTLs, but the report found low to no
apparent increased cancer risk from long term exposure to the
highest levels of detected contaminants. Further soil testing
was recommended. Residents with ash, glass, or metal pieces
in their soil were advised to only grow fruits and vegetables
in raised beds with clean soil. The report also concluded
that based upon distribution and measured levels, PAHs in the
Durrs neighborhood did not appear to be related to the
Lincoln Park Complex. But, plaintiffs allege that FDEP
reached a different conclusion, finding that the PAHs and
arsenic were related to the complex.

In 2008
and 2009, FDEP worked with the City to address potential
impacts on residents. FDEP recommended that surface soil at
the incinerator site be remediated to residential SCTLs,
covered with backfill, or removed. FDEP also required
additional testing of the complex.

The
Hintons allege that contamination was discharged from the
complex on multiple occasions, during: (1) operation of the
incinerator site; (2) operation of the wastewater treatment
and waste transfer site; (3) demolition of the Lincoln Park
Elementary School; (4) excavation of the school site during
construction of the One Stop Shop; (5) release of ash and
contaminated water during construction and remediation; and
(6) residential development (if ash was used as fill in the
Durrs neighborhood).

The
Hintons further allege that they have ingested, inhaled, and
touched contaminants from the soil and ground water through
walking, playing, and gardening in the neighborhood or
consuming well water or foods grown on their property. The
Hintons' oldest daughter died from a rare uterine cancer
in 2010, and experts disagree about whether her cancer could
have been related to the incinerator site. The Hintons also
allege that they have lost uses of their property and that
home values have been damaged by the stigma.

The
Hintons' complaint

The
Hintons brought the underlying action in 2007. The operative
complaint raises five counts. Count I seeks strict liability
damages under section 376.313, Florida Statutes, for
discharge of hazardous substances from the Lincoln Park
Complex. Count II seeks damages for negligence from failing
to warn of a hazardous condition; allowing discharge of
contaminated soil; failing to remediate contamination and use
reasonable care in remediation; and other breaches that have
allegedly caused the Hintons physical injury, emotional
distress, and property damage, including lost use and
diminished value. Count III asks the court, through permanent
injunction, to require the City to fund a court-supervised
medical monitoring program. Count IV seeks compensation for
inverse condemnation, alleging the discharge of contaminants
onto the Hintons' properties constitutes a taking. Count
V alleges a violation of substantive due process if the
City's actions did not constitute a taking.[2]

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